Novel forms of employment: quid juris?

AutorJo Carby-Hall
Cargo del AutorCatedrático y Director de Investigación Internacional en el Centro de Estudios Legislativos de la Universidad de Hull (Inglaterra)

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I Explanatory background

The traditional employment relationship which consists of employees enjoying full time contracts of service1 with one employer over an indefinite period of time is in the course of being transformed. This gradual transformation has become noticeable from around the 1970s and has since 2000 gained considerable momentum. The reason why these changes are taking place is that flexible working patterns are preferred by

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both employers as well as workers to take into account the pace of societal and economic developments. These novel types of employments are characterised by the provision of work which tends to be irregular, by patterns of work which are unconventional and by work places which do not conform to what is generally done in the field of industrial relations.

These novel forms of employment have the effect of creating a debate between the social partners,2 each of whom has different perspectives and different interests. Trade unions are mainly concerned with the preservation of workers' social rights, namely their employment rights as provided for by legislation and in countries such as the United Kingdom, where the common law operates, their common law rights, as well as their rights emanating from the contractual terms and conditions of employment. One the other hand the employers' interests lie in making the labour market more flexible and thus more favourable to them3 and less favourable to workers.

It being irrelevant in the context of this chapter, it is not intended to treat the traditional employment relationship between employer and employee; nor is it intended to treat forms of employment which involve temporary, contract, agency, seasonal, sessional and term-time workers. Rather, what is proposed is to examine, evaluate and analyse the novel forms of employment, of which there are nine, which have come about in recent years and which are still in their developmental stages. This analysis will attempt to illustrate the implications of those novel forms of employment on both workers' working conditions and the labour market.4 The novel forms of employment to be discussed herein will include employee sharing, job sharing, voucher-based work, interim management, portfolio work, collaborative employment, crowd employment, casual work and information and communication technologies based mobile work. An analysis and evaluation of each of those types of novel employment will feature. Prior to doing so however, three important general matters need a mention. Firstly, that all or some of these novel forms of employment do not operate in all countries of the world. In the second instance, although the discussion will treat briefly each of the novel forms of

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employment mentioned above, countries which operate all or some such novel forms of employment will but receive a brief mention. Thirdly, reference will mainly be made to the United Kingdom laws and practices and to a lesser extent, those of other countries in order to explain the legal and administrative difficulties which might arise in the future pertaining to those novel forms of employment.

II New forms of employment
1. Employee Sharing5

Working for one company at any one time could become a rarity in the future! A "one to one relationship with the employer" is currently being replaced by "a one to many employers' relationship." Employee sharing thus consists in an individual employee being jointly hired by a group of employers (who are not clients of a traditional temporary work agency). Such employees rotate between different employers.

There are, according to research carried out by Eurofound,6 two different types of employee sharing.7 The first type is strategic employee sharing where "a group of employers forms a network which hires one or several workers to be sent on individual work assignments with the participant...companies. The structure is similar to temporary agency work, with the difference that the workers regularly rotate among the participating employers and work exclusively for these employers, and the network itself does not aim to make a profit". The second type of employee sharing is ad-hoc employee sharing described as follows. "An employer who temporarily cannot provide work for his staff sends them to work for another company. The employment contract between the initial employer and the worker is maintained while the worker is incorporated into the work organisation of the receiving employer. Again, the structure is similar to temporary agency work, with the difference that the initial employer is not in the business of pla-

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cing people in work, and the intention is that the placement is temporary and that the worker will return to work with the initial employer."8

An analysis of the concept of employee sharing as described above begs the question of companies being in competition with each other. It is suggested that the employee sharing concept can only operate satisfactorily when companies are not in competition and where therefore there is no conflict of interests between them. The employee sharing concept is thus not suitable in cases where companies are competing with each other. Furthermore this concept is not suitable to situations where a company has trade secrets, confidential progressive methods of working or other matters which it does not wish to share with other companies9. Nor will this concept be suitable to cases where there exist restrictive covenants10 in the employee's contract of employment. It may therefore be said that the concept of employee sharing in both its meanings11 is limited, in that it can only operate effectively where companies are not in competition with each other, where there are no trade secrets involved and where restrictive covenants in employees' contracts do not feature.

Where, on the other hand none of the above restrictions exist, the concept of employee sharing constitutes an effective and desirable form of employment. Companies may therefore share skilled12 and professional employees13 as well as semi-skilled and unskilled employees in accordance with their requirements.14 Employee sharing is an employment form in which a group of employers hires workers jointly and is jointly responsible for them.

It should be noted that the employee sharing concept must be distinguished from the concepts of temporary or casual employment which themselves constitute different

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forms of employment in their own right.15 Employee sharing is about companies acquiring a share of a professional - and to a lesser extent semi-skilled or unskilled - worker's hours per week or month or even longer.

1.1. Strategic Employee Sharing

Strategic employee sharing is considered "as a model which can offer voluntary flexible work and also retain employees."16 It was initially established according to CERGE17 "out of economic and social necessity to create a sustainable relationship between companies and workers, even if an individual employer could not provide sustainable work." A number of enterprises, mainly small and medium ones (SMEs), operating in the same region, establish jointly a legal entity to employ workers and make them available to the member establishments- indeed exclusively to them, - to cover the regular human resources needs of those member establishments where there is insufficient work in each individual company to justify full time employment. Instead of offering individual fixed-term contracts the group is able to offer permanent employment to its jointly employed employees. The employment risk is shared among the member establishments while the worker has a single employer. This initiative aims at creating a collective staff which is shared across establishments. For employees, this arrangement could lead to their integration in the various establishments they work for and thus give them a sense of belonging and commitment. The employer group thus becomes the legal employer of the shared workers while the participating establishments are responsible for work organisation as well as all other matters such as statutory requirements imposed on employers by laws such as health and safety measures at work, particulars of employment, social dialogue and so on.

Regarding the organisation of the group of enterprises, the larger groups have a specific management body while smaller groups are organised by one of the participating establishments which take this responsibility on in addition to their company workload. It has also been known for such establishments to rotate. Annual meetings are held between the group management and "participating companies set joint objectives and expectations to facilitate the coordination of the operational assignment of work."18

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Anticipated human resources demand is discussed by the group in the development of an annual plan which on that basis the member establishments guarantee...

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